On Thursday, 19 October 2017, the Johannesburg High Court ruled that the common law defence of reasonable and moderate chastisement is unconstitutional and no longer applies in our law. This means that from now on, it is illegal for parents to apply any form of physical discipline to their children (no matter how light or well-intended). Parents who disobey the law and continue to spank their children, may be charged with assault and face criminal prosecution.

Freedom of Religion South Africa (FOR SA), who was invited by the Court to make submissions as a “Friend of the Court”, argued in favour of reasonable chastisement on the basis that millions of Christians (and indeed persons of other faith groups) believe that the Scriptures permit (if not command) reasonable and appropriate correction of their children. FOR SA argued further that parental discipline is an important part of parents’ duty to ensure their children are brought up as responsible human beings with a sense of right and wrong, and that it is therefore ultimately for the child’s good and in his/her best interest.

According to Judge Keightley, “the notion of parental power and the view that children owe a duty of obedience to their parents” are “at odds with the child-focused model of rights envisaged under our Constitution”. In her opinion further, this is a case where “it is permissible to require religious parents who believe in corporal punishment to be expected to obey the secular laws, rather than permitting them to place their religious beliefs above the best interests of their children.”

Undermining of Religious Freedom and Parental Authority

FOR SA Executive Director, Michael Swain, comments that “FOR SA deplores the high rates of child abuse and domestic violence in South Africa, and strongly condemns any form of violence against children. Every child, regardless of race or culture, is created in the image of God and is therefore infinitely valuable and has immense human dignity.”

He explains that “there is however a fundamental and obvious difference however between violence and abuse, and reasonable and moderate chastisement in love. It is unfortunate that the judgment does not recognise this distinction which is also recognised by the social sciences, and considers chastisement in all circumstances to be detrimental and harmful to children”, he comments further.

Will Parents be Criminalised?

FOR SA is concerned that the judgment makes serious inroads on parental authority, as well as on the freedom of millions of South African parents who believe that reasonable and moderate physical chastisement done from time to time, always in love, is in the best interests of their children. Although the judgment states that “as far as possible, parents should not be criminalised”, in law it is possible that criminal sanctions may be imposed and children who are considered to be at risk of abuse or violence in the family home, may be removed from their parents.

Dangerous Precedent

The judgment also sets a very dangerous precedent for other cases where children’s rights have to be weighed against parental and religious rights. For example, in the context of transgender issues, it is quite foreseeable that this case will be used as authority to insist that parental caution and concern be overruled in favour of a young child’s desire for hormone suppressant treatment and gender reassignment surgery. Yet there is a clear recognition in law that a child does NOT have equal rights to an adult – hence the age of consent for sexual activity, the age of voting, laws against drinking and smoking before a certain age, etc.

“Judicial activism”

In its submissions to the Court, FOR SA pointed out that unless it was found on appeal that the appellant (the Muslim father who had been convicted of common assault of his child in the Magistrate’s Court) had acted within the bounds of the common law defence, the constitutional issue was academic and should not be considered any further. Judge Keightley did not agree and found that the “interests of justice” require a consideration of the constitutional issue.

While high courts have a constitutional obligation to develop the common law in line with our Constitution, FOR SA’s concern is that the judgment is an over-reach and effectively usurps the power of Parliament who has primary responsibility for law reform. In this regard, we point out that when deliberating the Children’s Act in 2005, Parliament, as the democratically elected representatives of the people of South Africa, made a deliberate and considered decision to retain the right of parents to reasonably and moderately chastise their children, as part of SA law. With a stroke of a pen, the Court has now effectively overruled the legislature’s decision and circumvented the legislative process. This is judicial activism at its extreme.

The sad fact is that, as a result of this “spanking judgment”, significant amounts of taxpayers’ money will now be directed into training interventions and court cases involving potentially responsible parents and families that are not at risk, when it should be directed towards those families and communities that have already been identified as truly in need of such interventions. The utilisation of government’s time and budget to address “corporal punishment” cases will effectively increase the risk to already identified children and families who are at risk, making them even more vulnerable with less resources to intervene in those cases.

Case Could be Appealed

The appellant has three (3) weeks from date of judgment to apply for leave to appeal the judgment to the Supreme Court of Appeal in Bloemfontein. FOR SA itself is studying the judgment carefully with a view to a possible appeal.

Please pray for and support FOR SA, should they choose to appeal this case: www.FORSA.org.za

What Does the Bible Say?

Like everything else in the world, children firstly belong to God.

“…the world is Mine, and all that is in it.” Psalm 50:12

The care of children has been entrusted to the parents. Parents are responsible to feed and clothe (1 Timothy 5:8, Matthew 7:9-11), educate (Deuteronomy 6:6-7) and protect their own children (Exodus 22:2, Luke 22:36). A vital part of education is training the child to do what is right and not to do wrong, and that implies discipline.

The rod is the family’s symbol of authority (“Do not withhold discipline from a child; if you punish him with the rod, he will not die. Punish him with the rod and save his soul from death.” Proverbs 23:13-14). Of course, the rod is not the only instrument of discipline available to parents (others are verbal, denial, withdrawal and disinheritance). As the parents discipline their children by using suitable methods, including the rod, they are performing an important role within society in building character and thus preventing delinquency and immorality.

In the first instance, the fear of God ought to restrain parents from abusing their position.

”See that you do not look down on one of these little ones. For I tell you that their angels in heaven always see the face of My Father in heaven.” Matthew 18:10

Biblically, the state’s legitimate interference in the family is limited to when parents commit crimes against children, or children commit crimes, including against their parents (Deuteronomy 21:18-21).

Are you at risk of going to jail for spanking your child? Despite the ruling, it is unlikely. Keightley's judgment (Clause 81) claims that will not be the result, but rather parents will be referred to the Department of Social Development for brainwashing indoctrination into their ideology of child rearing.

Risk for Churches and Ministries that Teach Spanking

A greater risk would be, for example, for divorced families, who share childcare responsibility - where they disagree. If one parent wanted to be nasty and get back at the other, they could use the spanking issue to haul the other into court (as has been done before). Also the risk of complaints to the Human Rights Commission on churches and organisations teaching spanking (as happened with Joshua Generation). Churches are unlikely to go to jail, but they may be hauled before courts - causing a lot of stress and legal fees.

May be appealed in Constitutional Court

This is a South Gauteng High Court ruling, so it may still be appealed to the Supreme Court of Appeal and the Constitutional Court. The case, however is messy and not ideal for an appeal. The man was accused of assaulting his wife as well, which makes it about domestic violence, and makes his claim of 'reasonable chastisement' of his son more difficult to believe - and an appeal can make it look as if we are defending domestic violence, weakening our chances. Judge Keightley also said that the accused did not use the argument of a religious belief in spanking, which she believed would have been a stronger defence. That defence will thus still need to be tested in a future court case.

Iindaba is the official gazette of the Diocese of Port Elizabeth - Anglican Church of South Africa

Christian News to strengthen God's people atwww.gatewaynews.co.zaNews that is fresh, relevant, edifying and which glorifies Jesus!

Worthy News is a website with a good selection of news articles from around the world in a number of categories, both Christian and secular. They also offer a free subsciption service to deliver daily news headlines to your email box. Click here to pay them a visit.